Never Give Up

“Never confuse a single defeat with a final defeat.”
-F. Scott Fitzgerald

Legal issues facing Highland New Wind Development (HNWD) will most-certainly delay construction of the wind utility, if not set in motion a chain of events that halt it indefinitely.

Endangered Species Act

Since 2003, the US Fish & Wildlife Service (FWS) and the Virginia Department of Game & Inland Fisheries (VDGIF) have both expressed concern that if HNWD’s turbines are erected, there exists a “strong, or extremely high likelihood” of deaths (otherwise known as “takes”) of endangered species, including the Indiana bat and Virginia Big-Eared bat, because of the proximity of the utility to the largest hibernating colonies in the region, located in West Virginia.

Despite the recommendations of these agencies that HNWD be required to comply with the Endangered Species Act (ESA) and to obtain an Incidental Take Permit (ITP) before receiving authorization to begin construction, the Virgina State Corporation Commission (SCC) declined to take their advice. Instead, the SCC required a post-construction monitoring, adaptive management, and payment “per take” plan be developed by the VDGIF and implemented by the utility.

The problem is that the SCC-authorized plan is, in essence, illegal. It is in violation of Section 9 of the ESA, which prohibits the “taking” of any endangered species, and Section 10, which allows a limited exception to Section 9 if (and only if) the US FWS has issued an ITP in accordance with a site-specific Habitat Conservation Plan (HCP) before any “take” occurs. The ESA is clear that in the absence of an ITP, anyone who undertakes activities that are likely to take members of endangered species, or who authorizes such activities, may be subject to criminal and civil federal enforcement actions as well as civil actions by citizens.

This is where Meyer Glitzenstein & Crystal (MGC) comes in. MGC is the Washington D.C.-based law firm that, in December 2009, secured a precedent-setting federal court ruling requiring the Invenergy-Beech Ridge wind project in Greenbrier County, WV to obtain an ITP for the Indiana bat.

May 14, the law firm filed notice on behalf of citizens, conservationists, and the Animal Welfare Institute, of intent to sue HNWD and the Highland County Board of Supervisors (HCBOS) if the utility proceeds with construction in defiance of the ESA.

In January of this year, HNWD advised the HCBOS that the company would obtain an ITP. More recently, however, HNWD spokesmen have declared that an ITP is not required and that they don’t plan to seek one. This inconsistent behavior is totally in-line with the arrogant disrespect if not reckless disregard of the regulatory process that the developer has displayed for more than seven years. Who ya gonna believe–their public relations shills or your lyin’ eyes?

We at Brightside can only wonder if, instead of working so hard to dodge federal regulation, HNWD had simply embraced the regulatory process from the get-go, their turbines would’ve been up and running years ago. Their loss in production tax credits is certainly our gain. Well, ours and that of the HNWD lawyers.

Camp Allegheny

It’s going to happen. Perhaps, if we’re lucky, before the case ever gets to a judge, but certainly after a judge rules on the matter, it’s going to happen. HNWD is going to come to grips with the fact that there’s just no getting around the Endangered Species Act. The wind utility is going to have to comply with federal law in order to build. And as soon as they begin the ITP process with the US FWS, their project becomes “a federal undertaking,” subject to the provisions of the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA).

The triggering of NHPA will not, necessarily, dislodge a silver bullet where Camp Allegheny is concerned. However, there is little doubt that the evolution of HNWD from an essentially local to an essentially federal project will empower the federal authorities, beginning with the Advisory Council on Historic Preservation (ACHP), to speak strongly where they have been previously muzzled. Some of our elected and appointed representatives might even be compelled to take their concerns back to the Highland County BOS and the SCC. It could happen. Stranger things have.

In its 2010 “History Under Seige” report, the Civil War Preservation Trust identified Camp Allegheny as one of the ten most endangered Civil War battlefields in the nation because of its proximity to HNWD’s proposed 40-story wind turbines.

This acknowledgment of Camp Allegheny’s endangered status, coupled with the federal mandate to protect and preserve sites on the National Register of Historic Places as codified in the NHPA (and triggered by HNWD’s beginning the process of applying for an Incidental Take Permit) is, as mentioned, not a silver bullet.

But once HNWD begins the permit process, it’ll be much more ammunition than we’ve had until now.

Ammunition is only as valuable as those who are willing to carry it forward into battle.

Your carrying capacity will be needed in the days ahead. Please check back.